from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:00-cr-06022-DMM-1
JORDAN and JILL PRYOR, Circuit Judges, and REEVES, [*] District Judge.
REEVES, DISTRICT JUDGE:
Llewlyn appeals the district court's denial of his motion
for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Because Llewlyn is ineligible for reduction of a sentence he
has already completed, we affirm.
was charged with controlled substance offenses in the
Southern District of Florida in early 2000. He pled guilty in
May 2000 to one count of conspiring to possess with the
intent to distribute cocaine in violation of 21 U.S.C.
§§ 846 and 841(a)(1). He was sentenced on September
28, 2000, to 110 months' imprisonment, to be followed by
three years of supervised release.
months after Llewlyn began serving his Florida sentence, he
was convicted of conspiring to distribute and possessing with
the intent to distribute cocaine and cocaine base in the
Western District of North Carolina. He was sentenced for that
conviction in July 2001 to 360 months' imprisonment, to
run consecutively to "any previous state or Federal
sentence." Llewlyn's first sentence expired by its
terms on or about November 28, 2009, at which time he began
serving the 360-month sentence imposed in North Carolina. His
anticipated release date is January 27, 2025.
and 2012, Llewlyn filed a trio of motions in the Western
District of North Carolina, seeking to reduce his 360-month
sentence based on Amendment 750 to the United States
Sentencing Guidelines. The district court granted the motions
in August 2012 and reduced Llewlyn's sentence to 292
months of imprisonment. The North Carolina sentence was
further reduced to 235 months' imprisonment pursuant to
Amendment 782 to the Sentencing Guidelines in January 2016.
782 went into effect on November 1, 2014, and lowered the
base offense levels for most drug offenses. See United
States v. Maiello, 805 F.3d 992, 994 (11th Cir. 2015).
Llewlyn filed a pro se motion pursuant to 18 U.S.C.
§ 3582(c)(2) in the Southern District of Florida in
November 2014, seeking a reduction of his 110-month Florida
sentence under Amendment 782. However, the district court
summarily denied the relief because that sentence had already
thereafter, Llewlyn filed a pro se "traverse,
" arguing that he had been in custody without
interruption and that his consecutive federal sentences must
be viewed in the aggregate for purposes of his motion. No
further activity occurred until early 2015, when Llewlyn,
still acting pro se, filed a "motion for
status" and "motion to reopen judgment to allow
time for appeal or in the alternative construe
defendant's traverse . . . as a motion to
reconsider." The district court viewed the traverse as a
motion to reconsider its order denying a sentence reduction
and appointed counsel for Llewlyn. The district court denied
Llewlyn's motion for reconsideration on February 9, 2016.
Llewlyn filed a notice of appeal fourteen days later.
United States contends, as a threshold matter, that the
instant appeal is untimely and must be dismissed. Generally,
a notice of appeal in a criminal case must be filed within
fourteen days after entry of the order or judgment being
appealed. Fed. R. App. P. 4(b)(1)(A). Within five days of the
district court's denial of Llewlyn's initial motion
for a sentence reduction, he filed a "traverse, "
which the court construed as a motion to reconsider. A
timely-filed motion for reconsideration may toll the time for
filing a notice of appeal. See United States v.
Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d
8 (1976); United States v. Cerceda, 172 F.3d 806,
811 n.3 (11th Cir. 1999) (en banc) (holding that the
government's timely motion for reconsideration in a
criminal case stopped the time for filing an appeal). But the
government maintains that Llewlyn's traverse was actually
a motion to correct or reduce a sentence under Rule 35 of the
Federal Rules of Criminal Procedure, which does not suspend
the deadline for filing a notice of appeal. See Fed.
R. Crim. P. 35; Fed. R. App. P. 4(b)(5). We review these
issues de novo. United States v. Phillips,
597 F.3d 1190, 1194 n.9 (11th Cir. 2010).
35(a) permits a district court to "correct a sentence
that resulted from arithmetical, technical, or other clear
error" within fourteen days after sentencing. This rule
applies not only to original sentencing proceedings, but also
to resentencings under 18 U.S.C. § 3582(c)(2).
United States v. Caraballo-Martinez, 866 F.3d 1233,
1241 (11th Cir. 2017) (citing Phillips, 597 F.3d at
1196). However, not all motions under § 3582(c)(2)
result in resentencings.
classic example of a § 3582(c)(2) ruling on the merits
occurs when a district court determines that a defendant is
eligible for a sentence reduction because the applicable
guidelines range has been lowered; the court has analyzed the
§ 3553(a) factors; and the defendant is resentenced to a
lesser term of imprisonment. See Phillips, 597 F.3d
at 1198-99. There is no question in such instances that,